Citation Nr: 0703413
Decision Date: 02/05/07 Archive Date: 02/14/07
DOCKET NO. 04-20 067 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to service connection for diabetes mellitus,
Type II.
2. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty from April 1962 to April
1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota.
The issue of service connection for hypertension is addressed
in the REMAND portion of the decision below and is REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The probative evidence does not establish that the
veteran had service in Vietnam.
2. The probative evidence does not establish that the
veteran was otherwise exposed to dioxins/herbicides during
service.
3. Diabetes mellitus, Type II, was not manifest during
service, was not manifest within one year of separation, and
is not otherwise attributable to service.
CONCLUSION OF LAW
Diabetes mellitus, Type II, was not incurred in or aggravated
by service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the claimant's claim, a
letter dated in October 2002 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II).
The claimant's service medical records, VA medical treatment
records, and identified private medical records have been
obtained, to the extent available. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. There is no indication in the record that
any additional evidence, relevant to the issue decided
herein, is available and not part of the claims file. The
records satisfy 38 C.F.R. § 3.326.
As there is no indication that any failure on the part of VA
to provide additional notice of assistance reasonably affects
the outcome of this case, the Board finds that such failure
is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).
Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
A chronic, tropical, or prisoner-of-war related disease, or a
disease associated with exposure to certain herbicide agents,
listed in 38 C.F.R. § 3.309 will be considered to have been
incurred in or aggravated by service under the circumstances
outlined in this section even though there is no evidence of
such disease during the period of service. No condition other
than the ones listed in 38 C.F.R. § 3.309(a) will be
considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116;
38 C.F.R. § 3.307(a).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975 shall be
presumed to have been exposed during such service to an
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. The last date on which such a veteran
shall be presumed to have been exposed to an herbicide agent
shall be the last date on which he or she served in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975.
If a veteran, who served in the Republic of Vietnam was
exposed to an herbicide agent during active military, naval,
or air service, the following diseases shall be service-
connected if the requirements of 38 U.S.C.A. § 1116, 38
C.F.R. § 3.307(a)(6)(iii) are met, even though there is no
record of such disease during service, provided further that
the rebuttable presumption provisions of 38 U.S.C.A. § 1113;
38 C.F.R. § 3.307(d) are also satisfied: chloracne or other
acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), soft-tissue sarcomas (other
than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma), type II diabetes, and chronic lymphocytic
leukemia. 38 C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii).
The veteran's DD Form 214 reflects that the veteran had 11
months and 10 days of foreign service in Thailand. There was
no service in Vietnam. The veteran did not receive any
decorations, medals, badges, commendations, citations,
campaign ribbons, or any other recognition indicative of
Vietnam service. See Haas v. Nicholson, 20 Vet. App. 257
(2006).
The veteran asserts that he was in Vietnam once when his
plane was flying home and they stopped to refuel. He
reported that he got out of the aircraft and walked to the
terminal and waited inside until the plane was ready to
leave.
The service records to include the service medical records
and the veteran's personnel file do not reflect any
visitation by the veteran to Vietnam. The veteran submitted
a copy of his passport which showed that the veteran's
passport was valid for Vietnam and Thailand. It does not
show that the veteran was actually ever in Vietnam, just that
he was permitted to enter Vietnam. The veteran indicated
that he was attempting to locate fellow servicemembers who
could provide corroboration for his account of the plane
having landed in Vietnam. However, he did not submit any
such supporting statements.
Thus, there is no documentary or other supporting evidence
that the veteran had service in Vietnam. The Board does not
find the veteran's statements that he was in Vietnam to be
corroborated by the evidence of record in light of the DD
Form 214, the service medical records, and the personnel
file.
The veteran also asserts that while stationed in Thailand,
his unit worked on a road project about 80 miles north of
Bangkok. The veteran stated that he saw aircraft spraying
near the Thai-Laos border where he was stationed. He
recalled feeling droplets on his skin from the spraying. In
support of this allegation, the veteran submitted information
regarding the use, testing, and storage of Dioxins/Herbicides
during 1964 and 1965 in Thailand. The information shows that
there was herbicide use at the replacement Training Center of
the Royal Thai Army near Pranburi, Thailand. However, the
veteran's service personnel file shows that he was in
Thailand from September 1962 to August 1963 which was not
during the pertinent time period. The veteran has not
provided any other pertinent details regarding alleged
exposure. There is no record of exposure to
dioxins/herbicides during service.
Thus, the veteran did not have service in Vietnam. As such,
the veteran is not entitled to the presumption of exposure to
Agent Orange or other herbicides.
The United States Court of Appeals for the Federal Circuit
has determined that a claimant is not precluded from
establishing service connection with proof of direct
causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir.
1994).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304.
In addition, diabetes mellitus will be presumed to have been
incurred in or aggravated by service if it had become
manifest to a degree of 10 percent or more within one year of
the veteran's separation from service. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§
3.307, 3.309.
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. 38
C.F.R. § 3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).
The veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Thus, while the veteran is competent to report what
comes to him through his senses, he does not have medical
expertise. See Layno. Therefore, he cannot provide a
competent opinion regarding diagnosis and causation.
Neither the Board nor the veteran is competent to supplement
the record with unsubstantiated medical conclusions. Colvin
v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely,
health professionals are experts and are presumed to know the
requirements applicable to their practice and to have taken
them into account in providing a diagnosis. Cohen v. Brown,
10 Vet. App. 128 (1997).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
The service medical records do not reflect any complaints,
findings, treatment, or diagnosis of diabetes mellitus. On
his separation examination, the veteran's urinalysis was
tested for sugar and the results were negative. His
endocrine system was normal.
In February 1966, less than one year after separation, the
veteran was afforded a VA examination. It was noted that his
endocrine system had a negative history. The veteran was not
diagnosed as having diabetes mellitus.
Therefore, diabetes mellitus was not manifest during the one
year presumptive period after service.
The veteran was initially diagnosed as having diabetes
mellitus, Type II, in 1996, over three decades after the
veteran was separated from service. There is no competent
medical evidence establishing that diabetes mellitus, Type II
was manifest during service, within one year of separation,
or is otherwise related to service.
The veteran, as a lay person, has not been shown to be
capable of making medical conclusions, thus, his statements
regarding causation are not competent. Espiritu. Therefore,
he cannot provide a competent opinion regarding diagnosis and
causation.
In sum, the competent evidence does not establish that
diabetes mellitus, Type II, began in service or within one
year of separation. The service medical records showed no
such disease. Thus, there was no chronic disability shown
during service. Further, there is no continuity of
symptomatology following service. There is no record of any
continuous symptoms from his separation from service onward.
Rather, the record establishes that over 30 years after such
separation, the veteran was diagnosed as having diabetes
mellitus, Type II. There is no competent medical evidence of
any link between the veteran's current diagnosis and service.
As noted, the veteran is not competent to make this causal
link or to state the etiology of his currently diagnosed
diabetes mellitus, Type II. Despite the veteran's
contentions of an etiological relationship to service, the
record is devoid of supporting evidence.
Accordingly, service connection is not warranted.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. The preponderance is against the
veteran's claim, and it must be denied.
ORDER
Service connection for diabetes mellitus, Type II, is denied.
REMAND
The service medical records do not reflect any complaints,
findings, treatment, or diagnosis of hypertension. On his
separation examination, the veteran's blood pressure reading
was 132/80. His heart and vascular systems were normal.
In February 1966, less than one year after separation, the
veteran was afforded a VA examination. His sitting blood
pressure reading was 140/82 and his standing blood pressure
reading was 140/78. A review of his cardiovascular system
noted that the veteran's history was negative. There were no
positive findings. The veteran was not diagnosed as having
hypertension.
In an August 2002, correspondence was received from the
veteran's wife, a registered nurse. She stated that in the
fall of 1966, a little over a year after the veteran was
separated from service, he was taken to Fairview Hospital in
Minneapolis with chest pain. The chest pain was caused by
elevated blood pressure. A renogram was negative. He was
started on hypertension medication. His wife indicated that
hypertension often goes undiagnosed until the person is seen
for something else. She opined that this was the case with
the veteran and that he had had hypertension for a lengthy
period of time.
When reference is made to pertinent medical records, VA is on
notice of their existence and has a duty to assist the
veteran to attempt to obtain them. See Ivey v. Derwinski, 2
Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1,
Vet. App. 37 (1990). The records from Fairview Hospital in
Minneapolis from the fall of 1966 should be obtained in
compliance with VA's duty to assist.
Pursuant to VA's duty to assist, VA will provide a medical
examination or obtain a medical opinion based upon a review
of the evidence of record if VA determines it is necessary to
decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical
examination or medical opinion may be deemed necessary where
the record contains competent medical evidence of a current
diagnosed disability, establishes that the veteran suffered
an event, injury or disease in service, and indicates that
the claimed disability may be associated with the established
event, injury or disease in service. See Id.
The record before VA need only (1) contain competent evidence
that the veteran has persistent or recurrent symptoms of
current disability and (2) indicate that those symptoms may
be associated with the veteran's active military service.
Duenas v. Principi, 18 Vet. App. 512 (2004).
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court
noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I),
requires that the evidence of record "indicate" that the
claimed disability or symptoms may be associated with
service, establishes a low threshold. See also Locklear v.
Nicholson, No. 02-1814 (U.S. Vet. App. September 19, 20 06).
The veteran's wife has medical expertise. She did not,
however, base her opinion based on the comprehensive record.
Accordingly, the Board finds that the veteran should be
afforded a VA examination by an examiner who has had the
opportunity to review the record. The examiner should opine
as to whether it is more likely than not, less likely than
not, or at least as likely as not, that hypertension was
manifest during service, within one year of the veteran's
separation from service, or otherwise is related to service.
Accordingly, this matter is REMANDED for the following
actions:
1. Contact the veteran and obtain a
medical release for the veteran's records
from Fairview Hospital in Minneapolis
from the fall of 1966 through 1978.
Obtain and associate with the claims file
copies of all clinical records from that
facility for the time period in question.
2. Schedule the veteran a VA examination
to determine the nature and etiology of
the veteran's hypertension. The examiner
should review the claims folder prior to
examination. The examiner should opine
as to whether it is more likely than not,
less likely than not, or at least as
likely as not, that hypertension was
manifest during service, within one year
of the veteran's separation from service,
or otherwise is related to service. The
examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
3. The AMC should then readjudicate the
claim on appeal in light of all of the
evidence of record. If the issue remains
denied, the veteran should be provided with a
supplemental statement of the case as to the
issue on appeal, and afforded a reasonable
period of time within which to respond
thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs